By Emma Dumain
Challenges to the new law could go to the Supreme Court or not.
Around the country state officials are working to implement the new health care bill while its foes are seeking to undo it.
Just days following the passage of the controversial bill a group of 13 attorneys general 12 Republicans and one Democratfiled a lawsuit taking issue with the constitutionality of the individual mandate provision the requirement that most citizens purchase health insurance or pay a penalty.
And the attorney general from Virginia Republican Ken Cuccinelli II intends to file his own legal challenge on similar grounds.
While constitutional challenges have to work their way through the lower courts before having the chance to be heard by the Supreme Court Justice Stephen Breyer predicted last week that he and his colleagues would be hearing many of these cases within the next few years.
Every word in a bill is a subject for an argument in court and a decision Breyer said in response to a Congressional panels questioning about the Supreme Courts light caseload in recent years. You have passed a law with 2400 pages and it probably has a lot of words. And I would predict as a test of the theory that three or four years today no one is ever going to ask us again why we have so few cases.
When critics like Cuccinelli argue that the individual mandate is unconstitutional they are technically speaking citing Article 1 Section 8 of the U.S. Constitution otherwise known as the Commerce Clause. The clause gives Congress the power to regulate Commerce with foreign nations and among several the states.
The health care bill an instrument of Congress does more than regulate commerce critics say; it forces citizens to participate in commerce or be punished which they argue is unprecedented.
The attorneys general who filed their lawsuit en bloc are also citing a violation of the 10th Amendment which reads that the powers not delegated to the United States by the
Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.
To require states to impose the mandate and to set up health insurance marketplaces is an abuse of federal power they say.
Through compelling citizens to assume costs they cannot afford and by requiring them to establish health insurance through exchanges the Act deprives them of their sovereignty and their right to a republican form of government reads the official challenge.
Law experts and analysts are also widely speculating about the other types of challenges that could come before the courts.
For instance Georgetown Professor Randy E. Barnett in a recent Washington Post article said that challengers could make a case that the health care bill actively violates the 14th Amendment.
The Supreme Court has long interpreted this amendment as providing certain fundamental rights to citizens even ones that arent explicitly laid out in the Bill of Rights.
An attorney arguing against the constitutionality of the health care bill could piggyback on this precedent saying that the bill contains intrinsic violations of a persons fundamental right such as the right to make ones own health care decisions or the right to abstain from purchasing insurance.
But while over a dozen attorneys general have sprung into action with others likely to join them in the months ahead how likely is it that the High Court will hear challenges to the bill? And furthermore how might the Justices rule?
Stephen Vladeck a constitutional law professor at the American University Washington College of Law said the answers to those questions depend on a number of factors.
So much of the Supreme Courts role in all this will depend on what the lower courts do Vladeck said in an interview with Congress.org. It seems clear these challenges will go forward but what pressure the Supreme Court feels will be determined by the kinds of decisions the lower courts pursue.
If the challenges are consistently rejected by lower-level judges that is the Supreme
Court may not feel an obligation to hear the cases at all.
And theres even no telling how these lower court judges will receive the challenges in the first place.
Precedent seems to suggest that these lawsuits are losers but the wild card is always the judge you draw said Vladeck. Theres never a guarantee that a right judge in a right place and the right time will find ways around these precedents. And its these uncertainties that opponents of the bill will count on.
Emma Dumain covers health care for Congress.org.
